COLUMBIA, SC — In 1996, Supreme Court Associate Justice Antonin Scalia wrote that state prisons are only required to give inmates the tools they need to challenge their sentences, not transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.
But Scalia has never met Demetrio Sears.
The 31-year-old Columbia man has served 11 years of an 18-year prison sentence for armed robbery. Sears who has a GED spent his time studying the law. Now, the prison law library clerk has a distinction most lawyers do not: a published article in the University of South Carolina Law Review.
Sears 119-page article, to be published next month, is a review of the states post-conviction relief process. Post-conviction relief is the last appeal available to people convicted of crimes. The process allows inmates to challenge their sentences for a variety of reasons, including incompetent legal counsel. This often leads to prisoners representing themselves before the court. South Carolina has averaged about 880 PCR cases in each of the last three fiscal years, according to state court officials.
In the article, Sears describes a prison system that does not follow its own policies and appointed attorneys who do not talk to their clients, forcing inmates to rely on out-of-date law libraries and the advice of other prisoners -- which that more often than not ends up as some type of scam.
I wrote this article for many reasons. I wanted judges and lawyers to know the difficulties and challenges prisoners go through before a prisoner stands before them or consults with them, Sears wrote in the articles introduction. I wanted everyone to be confronted with the fact that the system is a mess, and a very routine one. And I suppose I wanted to make my time in prison count and be recognized for my work. Overall though, I wrote this because somebody needed to write it and I felt like I could.
The USC law review has never published an article from a prisoner in its 65-year history. Law reviews rarely publish articles from non-lawyers let alone prison inmates but it is not unprecedented. In 2006, the Harvard Law Review published an article from an inmate serving two life sentences in Florida.
Sears article gives advice to other inmates on how to file effective legal documents. His advice ranges from the technical avoid legalese words like hereto, wherefore and hereinafter to the practical inmates in solitary confinement, who are limited to just three books at a time from the library, should ask inmates in neighboring cells to check out books for them.
The USC law review, which is run by students with no oversight from the law school, voted unanimously to publish Sears article in a special edition of the law review scheduled for September.
You cant read the thing and not help but say, This guy deserves to be in law school, said Thomas Limehouse, the former editor of the law review who led the effort to publish Sears article. Its really an incredible story.
Sears is serving an 18-year sentence for an armed robbery conviction in 2002. Sears and two other men were accused of robbing a car repair shop on Percival Road. Sears who was sent to the hospital after being shot during the incident said he was in a car with others but was not involved in a crime.
Sears first trial in 2003 ended in a mistrial when a Richland County jury could not reach a verdict. A second jury convicted him four months later, along with a co-defendant. He has been in S.C. Department of Corrections custody ever since.
He said prisoners constitutional right of access to the courts is often at the whim of moody correctional officers and mail clerks who do not understand the law. He says the latest court opinions available in the prison law libraries date from 2003. And prisoners sometimes lengthy screening process upon entering the prison can sometimes prevent inmates from meeting court deadlines to file appeals.
Clark Newsome, a spokesman for the Department of Corrections, said no one at the department has read the article.
We are just as interested as anybody else in what hes got to say, Newsome said.
Robert Wilcox, dean of USCs Law School, said he has not read Sears article, but he knew about its publication.
To the extent that he raises some practical difficulties with prisoners exercising various constitutional rights because of the circumstances of being in prison that we may not understand, its always helpful to see that perspective, he said.
Despite Sears extensive knowledge about filing post-conviction relief claims, his own post conviction relief case did not go so well. The state Supreme Court dismissed his PCR case in 2006.
Sears is scheduled to be released in October 2018.
Some samples of Sears writing:
Institutional mailrooms can prove to be an almost impossible hurdle to overcome for prisoners attempting to have access to the courts. ... the frustration lies with mailroom personnel who are not trained to recognize legitimate court documents and deny prisoners postage out of ignorance.
It is very true that a prisoner can have absolutely no understanding of the law yet become an institutional law clerk simply (theres) a position that needs to be filled. ... To speak of such concepts as dictum, plurality opinions, and stare decisis to these law clerks is to speak in a foreign tongue. In this most common of situations, it is truly the blind leading the blind.
While prisoners should be wary of the legal advice given to them from anybody but a member of the Bar who has been trained in legal matters, not allowing a prisoner to explain to another prisoner what a term or legal principle means does not fit well with the reality of prison life. This is because when attorneys fail to answer letters from prisoners, refuse to accept telephone calls, and neglect to visit or otherwise communicate with their prisoner clients, the result is that prisoners will either allow their claims to perish or else seek help from other prisoners.
The percentage of mentally ill prisoners almost undoubtedly corresponds with the nearly 10% of prisoners who are treated with psychotropic medication in state prisons. These prisoners suffer a handicap in pursuing PCR that is not addressed by SCDC policy in any way.
Reach Beam at (803) 386-7038.